The opinion of the court was delivered by: LASKER
Leah and Buck Luria, suing on behalf of themselves and 217 others who purchased One-Stop-Inclusive-Tour-Charters (OTCs) to resorts in Jamaica, West Indies from Diamond Tours & Travel, Inc. (Diamond), seek $ 500,000. in damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2401(b), 2671 Et seq., from the Civil Aeronautics Board (CAB)
and the United States.
The government moves in the alternative (1) to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1), Fed.R.Civ.P. on the ground that the Lurias have not satisfied the jurisdictional prerequisite under the FTCA of filing a valid administrative claim prior to bringing this action, See 28 U.S.C. § 2675(a),
or (2) for summary judgment under Rule 56, Fed.R.Civ.P., on the ground that the CAB action complained of was a "discretionary function," which cannot be the basis for a claim under the FTCA, 28 U.S.C. § 2680(a).
Although the Lurias maintain that their Notice of Claim to the CAB was sufficient to give this court jurisdiction, they cross-move for leave to file a valid administrative claim in the event the court disagrees. For the reasons given below the government's motion to dismiss is granted and the Lurias' cross-motion is denied.
In October, 1975, Diamond filed with the CAB a One-Stop-Inclusive-Tour-Charter-Operator's Surety Bond issued by Pacific Employers' Insurance Co. (Pacific) in connection with Diamond's application to market OTCs to resorts in Jamaica, West Indies during December, 1975 and January, 1976.
The Lurias went on the charter tour but contrary to what Diamond had led them to believe through its advertising brochures, they discovered that the resort was not "ideally" located but was five miles from the ocean, and that their accommodations lacked proper bedding, hot water and operable toilet facilities and contained insects and rodents. In addition, the food was inedible and except for an unclean pool and a single, undersized tennis court, the resort had no facilities for any of the activities promised in its brochures. The Lurias left and purchased accommodations elsewhere in Jamaica.
When they returned they sued Diamond in state court for breach of contract and for fraudulent misrepresentation. The action was certified as a class action, and the Lurias, along with Thomas Guadagno, Arlene Guadagno and Karen Moriarty, became the class representatives, Guadagno v. Diamond Tours & Travel, Inc., 89 Misc.2d 697, 392 N.Y.S.2d 783 (Sup.Ct.1976). On May 7, 1977, the class won summary judgment on its claim for breach of contract.
In January, 1976 the CAB received from Karen Moriarty and from counsel for the Guadagno class, Shea, Gould, Climenko, Kramer and Casey, copies of letters they had sent notifying Pacific that plaintiffs intended to satisfy their claims in the Guadagno litigation against the full amount of the bond.
On February 24, 1976 the CAB permitted Pacific to reissue the bond in connection with Diamond's plans to market new OTCs.
In this litigation plaintiffs allege (1) that receipt of these notices by the CAB in January, 1976 created a duty on its part to investigate the matter and to secure the bond for the benefit of the Guadagno plaintiffs by preventing its reissuance, and (2) that the CAB negligently breached this duty by ignoring the notices and permitting Pacific to reissue the bond on February 24, 1976. Plaintiffs claim that when Diamond defaulted on its obligations to the purchasers of its new charters the bond became subject to others' claims as well as their own, and that plaintiffs suffered injury when they settled two California interpleader actions brought by Pacific for $ 75,000. instead of recovering the full face amount of the bond.
On February 8, 1978, within two years after the claim accrued, See 28 U.S.C. § 2401(b),
plaintiffs filed a Notice of Claim with the CAB which stated that it was brought "on behalf of Thomas Guadagno, Arlene Guadagno, Karen Moriarty, Leah Luria and Buck Luria and all others similarly situated," and sought $ 500,000. in damages. It referred to the Guadagno litigation, detailed what the CAB had done with respect to the bond, and was signed "Thomas Dickerson". Appended to the Notice were copies of the Guadagno complaint and of the state court decisions certifying the class and granting summary judgment; a copy of the Pacific surety bond; and copies of the January 1976 letters sent to the CAB, including a list of 107 of the 219 Guadagno class members.
The government argues that this claim did not satisfy the regulations governing the filing of administrative tort claims. The regulations provide that every FTCA claim presented to an administrative agency under 28 U.S.C. § 2675(a) must specify damages "in a sum certain," 28 C.F.R. § 14.2(a)
and require further that any
"claim presented by an agent or legal representative shall be presented in the name of the claimant, be signed by the agent or legal representative, show the title or legal capacity of the person signing and be accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative."
Specifically, the government asserts that the Notice of Claim was defective because (1) it did not specify damages in a sum certain for each claimant; (2) it did not show evidence of plaintiffs' counsel's authority to submit claims on behalf of the named plaintiffs; and (3) it did not show evidence of the named plaintiffs' authority to present claims on behalf of the other members of the purported class.
The court of appeals for the eighth circuit has suggested that even if each class member in a class action under the FTCA has not complied individually with the regulations, a class action still may:
"be maintained if a class claim has been filed which names the individual claimants, asserts and establishes the authority of the named claimant (or claimants) to present claims on behalf of the unnamed class members, states the total amount of the claim for the ...